Kabbage - COC re Jones Day Retention App, Doc. 189-1 — In re KServicing Wind Down Corp., et al.
- Date
- 2022-11-01
Summary
Doc 189-1, filed November 1, 2022 in In re Kabbage, Inc. d/b/a KServicing, et al., Case No. 22-10951 (CTG), jointly administered Chapter 11 cases in the United States Bankruptcy Court for the District of Delaware, is Exhibit 1, a revised form of order. The revised order would authorize the debtors to employ and retain Jones Day as special counsel effective as of the Petition Date under section 327(e) of the Bankruptcy Code, referring to Docket Nos. 108 & 162. It requires Jones Day to seek compensation under sections 330 and 331, bars reimbursement for office supplies, and requires reconciliation of prepetition fees and adjustment of the Fee Advance by its first interim fee application. It also limits markups and fee sharing for contract attorneys and requires notice of annual rate increases.
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Case 22-10951-CTG Doc 189-1 Filed 11/01/22 Page 1 of 5
Exhibit 1
Revised Order
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Case 22-10951-CTG Doc 189-1 Filed 11/01/22 Page 2 of 5
UNITED STATES BANKRUPTCY COURT
DISTRICT OF DELAWARE
------------------------------------------------------------ x
:
In re : Chapter 11
:
KABBAGE, INC. d/b/a KSERVICING, et al., : Case No. 22-10951 (CTG)
:
:
Debtors.1 : (Jointly Administered)
:
------------------------------------------------------------ x Re: Docket Nos. 108 & 162
ORDER AUTHORIZING DEBTORS TO EMPLOY AND RETAIN JONES DAY AS
SPECIAL COUNSEL TO THE DEBTORS EFFECTIVE AS OF THE PETITION DATE
Upon the application (the “Application”)2 of Kabbage, Inc. d/b/a KServicing and
its debtor affiliates, as debtors and debtors in possession in the Chapter 11 Cases (collectively,
the “Debtors”), for entry of an order (i) authorizing the Debtors to employ and retain Jones Day
as special counsel to the Debtors effective as of the Petition Date, and (ii) granting certain related
relief, all as more fully set forth in the Application; and upon consideration of the Debtors’
Declaration, the Lelling Declaration, the Supplemental Declaration of Andrew E. Lelling in
Support of Debtors’ Application to Employ and Retain Jones Day as Special Counsel to the
Debtors Effective as of the Petition Date [Docket No. 162] (the “Supplemental Declaration”),
and the Disclosure of Compensation; and the Court having jurisdiction over this matter pursuant
to 28 U.S.C. §§ 157 and 1334 and the Amended Standing Order of Reference from the United
1
The Debtors in these chapter 11 cases, along with the last four digits of each Debtor’s federal tax identification
number, as applicable are: Kabbage, Inc. d/b/a KServicing (3937); Kabbage Canada Holdings, LLC (N/A); Kabbage
Asset Securitization LLC (N/A); Kabbage Asset Funding 2017-A LLC (4803); Kabbage Asset Funding 2019-A LLC
(8973); and Kabbage Diameter, LLC (N/A). Kabbage is a trademark of American Express used under license;
Kabbage, Inc. d/b/a KServicing is not affiliated with American Express. The Debtors’ mailing and service address is
925B Peachtree Street NE, Suite 383, Atlanta, GA 30309.
2
Capitalized terms used but not otherwise defined herein have the meanings ascribed to them in the Application.
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Case 22-10951-CTG Doc 189-1 Filed 11/01/22 Page 3 of 5
States District Court for the District of Delaware, dated as of February 29, 2012; and this matter
being a core proceeding pursuant to 28 U.S.C. § 157(b); and due and proper notice of the
Application having been provided; and such notice having been adequate and appropriate under
the circumstances; and it appearing that no other or further notice need be provided; and this Court
having reviewed the Application; and this Court having held a hearing, if necessary, on the
Application; and this Court being satisfied based on the representations made in the Application
and in the Debtors’ Declaration, the Lelling Declaration, the Supplemental Declaration, and the
Disclosure of Compensation that Jones Day does not hold or represent an interest adverse to the
Debtors’ estates with respect to the matters for which Jones Day is to be retained as required by
section 327(e) of the Bankruptcy Code; and this Court having determined that the legal and factual
bases set forth in the Application establish just cause for the relief granted herein; and after due
deliberation and sufficient cause appearing therefor,
IT IS HEREBY ORDERED THAT:
1. The Application is approved as set forth herein.
2. The Debtors are authorized to employ and retain Jones Day as their special
counsel in these Chapter 11 Cases, in accordance with section 327(e) of the Bankruptcy Code,
Bankruptcy Rule 2014(a) and Local Rule 2014-1 on the terms and conditions set forth in the
Application and the Engagement Letter, effective as of the Petition Date.
3. Jones Day is authorized to render the professional services set forth in the
Application, the Lelling Declaration, and the Engagement Letter, as of the Petition Date.
4. Jones Day shall apply for compensation for professional services rendered
and reimbursement of expenses incurred in connection with the Chapter 11 Cases in compliance
with sections 330 and 331 of the Bankruptcy Code and applicable provisions of the Bankruptcy
2
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Case 22-10951-CTG Doc 189-1 Filed 11/01/22 Page 4 of 5
Rules, the Local Rules, the Order Establishing Procedures for Interim Compensation and
Reimbursement of Expenses for Professionals [Docket No. 95], and any other applicable
procedures and orders of the Court. Jones Day also intends to make a reasonable effort to comply
with the U.S. Trustee's requests for information and additional disclosures as set forth in the
Guidelines for Reviewing Applications for Compensation and Reimbursement of Expenses Filed
under 11 U.S.C. § 330 by Attorneys in Larger Chapter 11 Cases, effective as of November 1, 2013,
both in connection with the Application and the interim and final fee applications to be filed by
Jones Day in these Chapter 11 Cases.
5. Notwithstanding anything to the contrary in the Application, any order
entered in connection therewith, or any agreement entered into in connection with the Debtors’
retention of Jones Day, Jones Day shall not seek reimbursement of expenses for office supplies.
6. Jones Day shall: (a) complete its reconciliation of prepetition fees and
expenses actually incurred on behalf of the Debtors for the period prior to the Petition Date no
later than the filing of its first interim fee application in the Chapter 11 Cases; (b) make a
corresponding adjustment to the amount of the Fee Advance on or about that date, as described in
the Application and the exhibits thereto; and (c) disclose such adjustment in its first interim fee
application. Subject to the foregoing adjustment, Jones Day is authorized to hold any remaining
amount of the Fee Advance following such reconciliation throughout these Chapter 11 Cases and
such amount shall be applied to Jones Day’s fees and expenses as may be awarded by final order
of this Court and payable to Jones Day on a final basis.
7. Jones Day shall not charge a markup to the Debtors with respect to fees
billed by contract attorneys who are employed by outside agencies that contract with Jones Day to
provide services to Jones Day on behalf of the Debtors without prior agreement of the U.S. Trustee
3
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Case 22-10951-CTG Doc 189-1 Filed 11/01/22 Page 5 of 5
or further order of this Court. Jones Day shall ensure that any such contract attorneys are subject
to conflict checks and disclosures in accordance with the requirements of the Bankruptcy Code
and the Bankruptcy Rules. For the avoidance of doubt, Jones Day shall not share fees with existing
or future contract attorneys who are employed by outside agencies that contract with Jones Day
and that advise on the Debtors’ Chapter 11 Cases or enter into fee sharing arrangements with such
contract attorneys without prior agreement of the U.S. Trustee or further order of this Court.
8. Jones Day shall provide reasonable notice to the Debtors, the Court, the U.S.
Trustee and any statutory committee appointed in these Chapter 11 Cases of any annual increases
in the rates set forth in the Application.
9. Jones Day shall use its reasonable efforts to avoid any duplication of
services provided by any of the Debtors’ other retained professionals in these Chapter 11 Cases.
10. The Debtors are authorized to take all actions necessary to effectuate the
relief granted in this Order in accordance with the Application.
11. This Order shall be immediately effective and enforceable upon its entry.
12. To the extent that this Order is inconsistent with the Engagement Letter, the
terms of this Order shall govern.
13. This Court shall retain jurisdiction to hear and determine all matters arising
from or related to the implementation, interpretation, or enforcement of this Order.
4
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